Constitutions and Legal Matters
Introduction to Constitutions
It is important that the chair and members of congregational or parish councils read and are familiar with their constitution. It is also recommended that the constitution be reviewed periodically.
Congregational and parish
A constitution is a foundational document that sets out the beliefs, objects, powers and operations of an association, in this case, the congregation or parish. The constitution also provides a framework for the association to go about its business, including how to conduct meetings of the association and the governing body.
Each state and territory in Australia has different arrangements for the legal structure of an association (which is what the congregation or parish is, in more legal terms). Please seek the advice of the district administrator in your district about the legal structure of your congregation or parish.
The Australian Charity and Not-for-profits Commission (ACNC) requires all associations to have a constitution.
All congregation and/or parish council members must have read and understood the constitution to ensure correct procedures are followed, particularly in relation to the calling and holding of meetings. Contact your district administrator for assistance if you do not understand parts of the constitution.
The LCA recommends that all constitutions be reviewed regularly to ensure that the constitution is in line with the happenings of your congregation or parish. Regular review is also required to ensure that all current legislative requirements are included. Each district has a slightly different process for constitution assistance, and it is recommended that you speak with your district administrator for information.
LCA Constitutions
The LCA Constitution was adopted by the closing conventions of the United Evangelical Lutheran Church in Australia (27–28 October 1966) and the Evangelical Lutheran Church of Australia (27–28 October 1966) and by the Constituting Convention of the Lutheran Church of Australia (29 October 1966). All congregations of the LCA adhere to the LCA Constitution.
The LCA Standing Committee on Constitutions has developed model constitutions for its congregations and parishes that align with the LCA Constitution.
For more information or questions about LCA constitutions, contact the LCA Standing Committee on Constitutions at constitutions@lca.org.au
Legislative requirements
As legislation varies, you should visit the website for the relevant authority to learn more about the requirements in your state, territory or country for incorporated associations.
For the tax implications of being incorporated or unincorporated, visit the Australian Tax Office page for non-profits. You will find specific information for your jurisdiction from the links below.
Incorporated or unincorporated
It is important for church governing bodies to have an understanding of their legal structure. There is a big difference between being an incorporated or unincorporated entity.
Unincorporated
Unincorporated associations are not separate legal entities from their members. They are technically a collection of people acting together who have agreed to pursue a common purpose, such as to establish a faith community.
As an unincorporated association has no legal identity, it cannot hold assets in its own name. It cannot own land or property, employ people, enter into contracts in its own name, or sue and be sued.
The members of an unincorporated association do these things on behalf of the association. The members may have individual liability for the association’s debts and defaults. The association cannot be sued, but individual members may be sued.
For further information on unincorporated associations, refer to the Australian Charities and Not-for-profits Commission (ACNC).
Incorporated
If an organisation becomes incorporated, it is recognised as a legal entity with an existence separate from that of its members.
An incorporated organisation can:
- make contracts in its own name
- sue and be sued in its own name
- hold assets in its own name
- be eligible for many types of grants.
When an incorporated organisation has liabilities, its own assets can be used to pay the liabilities; however, assets belonging to a member cannot be taken. If an incorporated organisation is sued, its members will generally not be personally liable. If the organisation does not have enough assets to pay its debts, it can be wound up; however, members will not have any personal financial responsibility.
It is important to consider incorporation if your congregation:
- owns any land that must be registered in the Lands Titles Office or any other substantial assets
- employs someone
- needs insurance
- wishes to enter into a substantial contract
- wishes to apply for a grant of funding.
Legislation
Church council members must be aware of and comply with their legislative obligations. The accordion below covers the areas of legislation likely to be relevant to congregations and parishes. Each section refers you to sources where you can find more detailed information. Your District Office is another point of contact or legislation specific to your jurisdiction.
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